Counter-Terrorism and Security Bill

Lord King of Bridgwater Excerpts

Monday 26th January 2015 Lords Chamber

Moved by

[Lord King of Bridgwater]

79: After Clause 17, insert the following new Clause—
“Part 3AEnsuring or facilitating availability of dataEnsuring or facilitating availabilityPower to ensure or facilitate availability of data
(1) The Secretary of State may by order—
(a) ensure that communications data is available to be obtained from telecommunications operators by relevant public authorities in accordance with Part 3B, or (b) otherwise facilitate the availability of communications data to be so obtained from telecommunications operators.(2) An order under this section may, in particular—
(a) provide for—(i) the obtaining (whether by collection, generation or otherwise) by telecommunications operators of communications data,(ii) the processing, retention or destruction by such operators of data so obtained or other data held by such operators,(iii) the entering into by such operators of arrangements with the Secretary of State or other persons under or by virtue of which the Secretary of State or other persons engage in activities on behalf of the operators on a commercial or other basis for the purpose of enabling the operators to comply with requirements imposed by virtue of this section,(b) impose requirements or restrictions on telecommunications operators or other persons or provide for the imposition of such requirements or restrictions by notice of the Secretary of State.(3) Requirements imposed by virtue of subsection (2) may, in particular, include—
(a) requirements (whether as to the form or manner in which the data is held or otherwise) which ensure that communications data can be disclosed without undue delay to relevant public authorities in accordance with Part 3B,(b) requirements for telecommunications operators—(i) to comply with specified standards,(ii) to acquire, use or maintain specified equipment or systems, or(iii) to use specified techniques,(c) requirements which—(i) are imposed on a telecommunications operator who controls or provides a telecommunication system, and(ii) are in respect of communications data relating to the use of telecommunications services provided by another telecommunications operator in relation to the telecommunication system concerned.(4) Nothing in this Part authorises any conduct consisting in the interception of communications in the course of their transmission by means of a telecommunication system.
(5) In this section—
“processing”, in relation to communications data, includes its reading, organisation, analysis, copying, correction, adaptation or retrieval and its integration with other data,
“relevant public authority” has the same meaning as in Part 3B.
(6) See—
(a) section (Application of Parts 3A and 3B to postal operators and postal services) for the way in which this Part applies to public postal operators and public postal services, and(b) section (Interpretation of Parts 3A, 3B and 3C) for the definitions of “communications data” and “telecommunications operator” and for other definitions relevant to this Part.”

[Lord King of Bridgwater (Con)]

My Lords, in moving Amendment 79 standing in my name and that of the noble Lords, Lord Blair, Lord West, and Lord Carlile, I shall speak to all the amendments in the group through to Amendment 99.

This is an exceptional series of amendments that has been tabled in your Lordships’ House today, and I recognise that for some it seems an unacceptable use of parliamentary time. I make no apologies at all for doing this, as we face a very serious situation indeed in our country at present. Our legislation is not up to date to meet it, and it is the duty of Parliament to ensure that it is at this critical time. It is common ground across the House that the threat is now very significant. We are in the front line and we need to address that.

I start with a bit of history. Noble Lords who have taken an interest in this subject will be familiar with my amendments because they have been lying around for the past two and a half years. They are part of the Communications Data Bill that the Government published in draft two and a half years ago. In keeping with best parliamentary procedure, they invited the Joint Committee of both Houses to examine and report on the Bill, under the distinguished leadership of my noble friend Lord Blencathra, who I am delighted to see in his place today. If I say that that Joint Committee reported two years ago, and in terms of dealings in Parliament, nothing has happened since, it might be thought that the problem has gone away but, of course, the opposite is the case.

I am delighted that the noble Lord, Lord Evans of Weardale, is in his place. In his maiden speech, the noble Lord, a distinguished former director-general of MI5, said that after an extremely difficult period, by 2013 he thought the worst was over. He now admits that he was wrong. The threat in many ways is obvious. Before Paris and Belgium, the Government raised the threat level to severe. Intelligence showed what might be coming. We could easily have been Paris or Belgium. Thankfully, so far we have not been exposed in the same way, except for the tragedy of Fusilier Rigby, but it is a very brave man indeed who says that at the present time we would not be.

I believe that it was Andrew Parker, current director-general of MI5, who said that there are probably about 2,000 people in this country who are either supportive of or actively involved in promoting terrorist activities. I have lived a little bit of my life in the field where terrorism was a major challenge to this country but I never had to deal with suicide bombers. Some of the developments that now exist are of a scale and a difficulty—and a fanaticism, in the jihadist threat—that is of a different dimension to that which we previously faced.

It is easy to think that perhaps we are going through a rather bad phase, but I do not think anybody would seriously believe that about the current problems, particularly in the Middle East. The events just this last weekend in Yemen show yet another country that seems to be in chaos and confusion. I saw with interest—I had forgotten—that we are now in our fifth year with Syria in a state of chaos. If anybody in your Lordships’ House is brave enough to say when any of those countries presently in chaos will return to some measure of normality and peace and calm, I simply do not believe them. The evidence is that, with all the current distress and difficulties, it is going to get worse.

How do we face this challenge? How do we face the explosion of new technology that means we are up against terrorists who are extremely adept at using any new means of communication that is, perhaps, beyond our reach or, certainly at the present time, beyond our legislation? It is interesting that, at the moment, we are facing this challenge on the basis of legislation that is 15 years old. It is worth remembering that this is the 25th anniversary of the internet. We have to take on board the explosion in new developments since then and the possibilities for communication under new technologies.

I want to deal with one point straightaway. As soon as we start talking about access to communications data, people think—I am certain some very distinguished noble Lords think—somebody is going to listen to telephone calls. However, it is nothing to do with the content. It is to do with who, where and when certain contacts and certain patterns of contact are established. It is on that basis that the intelligence plays such a vital role. It includes the use of things that not all your Lordships—that certainly includes me—are masters of. I am not a tweeter. We have Facebook and Twitter. Somebody tried to explain WhatsApp to me; somebody else tried to explain Snapchat. I do not know about them, but it is absolutely clear that the terrorists and jihadists do. The understanding is that part of the reason for ISIL’s amazing advance across Syria and into Iraq was that their communications were so good and the way they kept together was entirely due to one or other of the last two systems that I mentioned, which they handled with great intelligence.

The problem that we now face is not boots on the ground. That never was the answer to this sort of situation. It is the problem of getting good intelligence. I have tabled what was available to me and my noble friends who have joined me in this enterprise. It is the original draft Bill that was carefully examined by my noble friend Lord Blencathra, and the noble Lord, Lord Armstrong, who I am delighted to see in his place. He was another distinguished member of the Joint Committee that examined that Bill, as was the noble Lord, Lord Jones. They proposed a number of important amendments. The Joint Committee submitted its report to Parliament two years ago. I understand that those criticisms were then considered carefully by the Home Office and were largely, if not totally, accepted. I also understand that amendments have now been suggested that go a very long way to meeting the important observations of that Select Committee. But they have not been available.

We face a crisis in security. There is a major threat and at the same time we have antiquated legislation that badly needs updating. We have done our best by drawing the attention of the House to this issue and by tabling amendments to include complete clauses of the previous Bill that were available to us. I hope that before Report the Government will either table amendments themselves or otherwise make the revised Bill available to Back-Benchers in this House to examine. Amendments could then be tabled so that this House has the opportunity to debate the matter. It will be the only opportunity that we will have in this Parliament and for this year, while the nation is at risk and the threat to our citizens is real. This is the only time in which we can tackle that.

I have carefully read the excellent report of my noble friend Lord Blencathra. It carries a number of criticisms which are covered in our amendments, some of which are quite significant. The most significant is what was called the snoopers’ charter. It covered far too wide a range of purposes. It not only covered national security and crime but made data available to local authorities to pursue things such as abuse of fly tipping, housing benefit and a whole range of other matters. It was also made available to the Inland Revenue to pursue tax offenders of one sort or another. Against this crisis and because of the quite exceptional nature of what we are proposing, my colleagues and I who tabled these amendments propose deleting all of those additional purposes in the Bill. We have included only national security and serious crime. I hope that everyone in your Lordships' House will agree that those are the critically important issues. Let us remember that what we are doing is not completely new and unprecedented. The principle has been established of data collection. We are bringing it up to date with the new challenges that the new technologies have brought.

I am not alone in having serious concerns. In another place, when the Home Secretary made her Statement two weeks ago following the events in Paris, Sir Malcolm Rifkind, former Foreign Secretary and current chair of the Intelligence and Security Committee said that new technologies were preventing the agencies from exercising the capability they used to have. Jack Straw, who was, unusually, responsible in his time for all the agencies because he was both Home Secretary and then Foreign Secretary said that it was,

“beyond argument that the legislation … has to be revised … so that we can resolve this issue as soon as possible”.

In his further remarks he asked for close co-operation to resolve this communications data issue,

“as soon as possible, and ensure that the intelligence and security agencies and the police have the capabilities today and tomorrow that they had in the past under legislation freely agreed by this House?”.—[Official Report, Commons, 14/1/15; col. 875.]

I say “Hear, hear” to that.

I quote—also from this report—a very good response by the shadow Home Secretary, Yvette Cooper, to the statement made by the Home Secretary two weeks ago. She said:

“Governments need to keep our people safe so that we can enjoy the very freedoms that our democracy depends on”.—[Official Report, Commons, 14/1/15; col. 871.]

She went on to say:

“We agree that the police and the agencies need to get the intelligence to keep us safe and that they need updated legislation”.—[Official Report, Commons, 14/1/15; col. 873.]

--- Later in debate ---

In that respect, I pay tribute to my noble friend Lord King for the opportunity that his amendments have afforded the House to reflect again at some length on these very important measures. He does so, having been five years as Secretary of State for Northern Ireland or Secretary of Defence—

[Lord King of Bridgwater]

Seven—

[Lord Bates]

His seven years’ experience there, as the noble Lord tells me, and seven years as chairman of the Intelligence and Security Committee add additional weight to what the noble Lord says. We will listen very carefully to what has been said.

There does not seem to be much doubt about the threat that is faced. The threat that we face was very eloquently put in a number of contributions: the noble Lord, Lord Macdonald, talked about the evidence used in real convictions; cases of communications data were given by the noble Lord, Lord Evans; and some practical, real-life examples were given by the noble Lord, Lord Blair. There are some very strong arguments that show that there is a need for us to look again at communications data.

Then of course we heard from my noble friend Lord Blencathra and we heard from the committee which reviewed the original legislation. It is important to get on record that elements of the original draft Bill considered by the Joint Committee are contained in this Bill. The IP resolution element was something that was in the draft Bill. It is not something that has been shelved; we felt that we could bring it forward with the necessary safeguards and it was brought forward. The noble Lord’s hesitations and questions very much remain, and we are very much committed to working with him and will seek to address his particular concerns.

I want to come back to the point that the noble Baroness, Lady Smith, mentioned. I preface these remarks—context is all with this—by saying that, first, we have to get a message out to people that we are talking about, in all of these things, the actual communications data and not the content. The content of the data will rightly require, whether it is an e-mail or a telephone call or an envelope, a warrant in order to be looked into. What we are talking about is tracking the communications data.

In the Data Retention and Investigatory Powers Act, which went through last year on a fast-tracked basis, Section 7 of that relatively short Act provides that:

“The Secretary of State must appoint the independent reviewer of terrorism legislation to review the operation and regulation of investigatory powers. … The independent reviewer must, in particular, consider … (a) current and future threats to the United Kingdom … (b) the capabilities needed to combat those threats … (c) safeguards to protect privacy … (d) the challenges of changing technologies … (e) issues relating to transparency and oversight … (f) the effectiveness of existing legislation (including its proportionality) and the case for new or amending legislation. … The independent reviewer must, so far as reasonably practicable, complete the review before 1 May 2015”.

If we had such a review from David Anderson before your Lordships’ House at this point, that would be of immense benefit in reaching these judgments. Your Lordships have touched on all the areas on which the independent reviewer has been asked to undertake a review and report. Those are the pertinent issues which have concerned Members who have spoken in this debate.

In the view of the Home Secretary, in the view of the Prime Minister and certainly in my view, the case is made for a communications data Bill to come forward. The noble Lord, Lord Condon, asked us to set out the clear road map as to how we were actually going to proceed. The road map has already begun. It began with the data retention elements in the Data Retention and Investigatory Powers Act last year and it continues in the counterterrorism Bill which is before your Lordships’ House. As a result of that legislation, it will require action once the report from the Independent Reviewer of Terrorism Legislation is received. In reality, that will probably mean that, very early in the new Session of Parliament, the House will have to turn its mind to this. Certainly, it is the absolute intent of the Prime Minister and the Home Secretary that it should do so as a matter of urgency.

Some people have said that that will necessarily take a year, or a year and a half, to the period of the sunset clause, but we do not anticipate that it will be necessary to take that long at all. In fact, as far as this counterterrorism Bill is concerned, which is perhaps a wider measure as far as others are concerned, we have managed to move this through, albeit at pace, but it will still have gone through scrutiny in a period of, say, three to four months from its introduction in the other place to its receiving Royal Assent, should your Lordships choose to pass the Bill.

So our position would be one of being deeply appreciative to my noble friend for introducing these amendments and of being particularly grateful for the quality of the debate and the contributions—

--- Later in debate ---

[Lord King of Bridgwater]

My Lords, I thank the Minister for the way in which he has responded to the long and very important debate that we have had on these amendments. It was a model ministerial reply, for which I am extremely grateful, particularly at the last minute.

Nobody would accuse the noble Lord, Lord Rooker, of ever beating around the bush, and the directness of his approach to the Minister was extremely helpful in elucidating one point, as to whether this would possibly jeopardise the other Bill. A senior and distinguished former holder of the office that the noble Lord, Lord Evans, held said to me that she thought that this amendment was more important than all the measures in the Counter-Terrorism and Security Bill. The Minister has advanced the alternative view—so obviously views can differ on that—but I do not think that we should underestimate why we are doing this Bill at all on a fast track, which is down to the recognition by the Government of the seriousness of the threat that we face. There is no question but that the situation has changed very significantly indeed and we are suddenly aware, in a way that we were not perhaps even six months ago, of the gravity of the threat. Nobody in this House has any excuse for not knowing what “severe” means in the threat level that was introduced by the Government a little while back: an attack is likely, if not necessarily imminent. That is what we are facing up to today.

I thank all noble Lords who contributed to this very important and very difficult debate. I entirely endorse what the noble Baroness, Lady Hamwee, said. I respect entirely the views of other noble Lords, who are desperate to protect civil liberties, privacy and the ancient traditions of freedom in this country. All that is very important indeed. The Minister referred to my previous experience, and what I do know is that the moment you get a terrorist outrage is when all the wrong things are decided. The pressure comes on that something has to be done, and it is much better to have decided in advance what you are going to do, in a measured way. Otherwise, whatever people say about privacy, the rights of the individual, freedom of speech and all those things, if there is a serious outrage, the criticism then will be: “Where are the security services? Why has Parliament not done its job? Why have they not got what they need to meet the situation?”. It is common ground in the current situation we face, I think, that there is a serious threat, because two things have happened: the threat has increased very significantly and, at the same time, technology has galloped forward. We are very fortunate to have the noble Baroness, Lady Lane-Fox, in the House. She illustrated just how grave that threat is from the new technologies. I do not begin to understand the dark cloud, but those are the threats that we may now be facing.

The intervention by the noble Lord, Lord Butler, was extremely helpful. He said one thing which I would rather like to repeat: I think some people have criticised the criticisms of the amendments that we have tabled. I did that myself; I was the first to say that these are the only ones we could table because they are in the draft Bill, but we know that it is within the Government’s capability to actually insert improved amendments and clauses which would even pass the scrutiny of my noble friend Lord Blencathra and the members of his committee.

The challenge we all face in this very difficult situation, with this awful evil of terrorism that is imposed on us, is to strike a balance between liberty, security and privacy in a civilised, democratic society. It is not just me saying this; I quoted those distinguished Members of another place as well, Sir Malcolm Rifkind and Jack Straw, who have supported the position we are aiming for from the offices that they held. Of course some people say they are just all the securocrats, but what you will find about securocrats is that sometimes we know a little about it. Sometimes we know what some of the problems are when you try and improve security or some of the problems you get when you fail to improve security.

I think the discussion we have had today has been very helpful and worth while. We have Report coming in a week and we must think very carefully about where we go. One thing I say to the noble Baroness, Lady Ludford, who said we could have a report by May, is that of course in May we have the small matter of a general election. This House is rising late in March. I notice the Minister’s optimism that once we come back, depending on who is in government, this could be whistled through. Realistically, if the opportunity that this Bill gives us is missed—and it is completely within the scope of this Bill to make these provisions—we are going to have another year in which we put our nation at risk, when terrorist outrages could be prevented if the security forces and the security agencies had the support they need. There have been a lot of tributes to the security agencies here and in this instance, with the threats that they face, I believe that the balance comes in favour of ensuring these additional abilities to deal with the new technologies which the out-of-date RIPA arrangements do not provide; I believe we need to look at this very seriously. In the mean time I beg leave to withdraw the amendment.

Amendment 79 withdrawn.